01-13504. Approval and Promulgation of Implementation Plan; Louisiana; Nonattainment Major Stationary Source Revision

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

This action approves a revision to the Louisiana State Implementation Plan (SIP) relating to “Nonattainment New Source Review Procedures.” This revision was submitted on July 25, 1997, by the Governor of Louisiana to EPA for approval. This revision removes a provision from the State's regulation, in Title 33 of the Louisiana Administrative Code (LAC), chapter 5, section 504, that treated nitrogen oxides (NO_X) as precursors to ozone in ozone nonattainment areas. This makes the regulation consistent with earlier actions by EPA that exempted NO_X as an ozone precursor in the Baton Rouge and Lake Charles nonattainment areas. Such exemptions are conditional and may be rescinded in which event section 504 would need to again be modified. By letter from Governor Foster to EPA dated March 5, 2001, the State has indicated that it is in fact considering a request for recission of the waiver. Despite such, however, EPA must first act on the State's prior request for a NO_X waiver and any regulations that the State adopted to implement such NO_X waiver pursuant to section 110(k) of the Act. In addition, this regulation also contains several administrative revisions that are non-substantive in nature and do not alter the meaning of this rule (such as corrections of capitalization errors). This rulemaking action is being taken under sections 110, 301, and part D of the Federal Clean Air Act (Act).

DATES:

This action is effective on July 30, 2001, unless adverse or critical comments are received by July 2, 2001. If EPA receives such comments, then it will publish a timely withdrawal in the Federal Register informing the public that this rule will not take effect.

ADDRESSES:

Please address written comments on this action to Ms. Jole Luehrs, Chief, Air Permits Section, Mailcode 6PD-R, Attention: Ms. Wendy Jacques at the EPA Region 6 Office listed below. Copies of the documents relevant to this action are available for public inspection during normal business hours at the following locations:

Environmental Protection Agency, Region 6, Air Permits Section (6PD-R), 1445 Ross Avenue, Dallas, Texas 75202-2733

Louisiana Department of Environmental Quality, H. B. Garlock Building, 7290 Bluebonnet Boulevard, Baton Rouge, Louisiana 70810

FOR FURTHER INFORMATION CONTACT:

Ms. Wendy Jacques of the EPA Region 6 Air Permits Section at [phone].

SUPPLEMENTARY INFORMATION:

Throughout this document “we,” “us,” or “our” means EPA.

Table of Contents

I. What Action Are We Taking Today?

II. What is the Background of Section 504?

III. What Does Section 182(f) of the Act Require?

IV. EPA Analysis

V. Final Action

VI. Administrative Requirements

I. What Action Are We Taking Today?

Today's action approves the removal of a provision from Title 33 LAC, chapter 5, section 504, that treated NO_X as a precursor to ozone in current ozone nonattainment areas. This makes the regulation consistent with earlier actions by EPA to exempt NO_X as an ozone precursor. This exemption was based on modeling that demonstrated that additional NO_X reductions would not contribute to attainment of the National Ambient Air Quality Standard (NAAQS) for ozone in the current nonattainment areas. In addition, we are approving several administrative revisions that are non-substantive in nature and do not alter the meaning of this rule.

II. What Is the Background of Section 504?

The State of Louisiana submitted to EPA two separate rule revisions to Title 33 of the LAC, chapter 5, section 504. The base rule was initially approved by EPA on October 10, 1997 (see 62 FR 52948). The first revision to section 504 was submitted to EPA on May 9, 1997, and was approved by EPA on January 5, 1999 (see 64 FR 415). The second revision to section 504, which this action will act upon, was submitted to EPA on July 25, 1997, as 1996 General SIP revisions. The July 25, 1997, submittal was adopted by the State of Louisiana previous to the adoption of the May 9, 1997, submittal. However, since the revisions were submitted out of sequence, EPA first approved the May 9, 1997, submittal. Today's action approves the chapter 5, section 504, portion of the 1996 General SIP revisions which were adopted on December 20, 1995, and submitted to EPA on July 25, 1997, by the Governor of Louisiana. The EPA will act on the remainder of the July 25, 1997, submittal in a separate action.

The EPA has exempted NO_X precursors to ozone based on a demonstration that additional NO_X reductions would not contribute to attainment of the NAAQS for ozone in the current nonattainment areas. The EPA previously approved the exemption (under section 182(f) of the Act) of NO_X requirements for the serious ozone nonattainment area of Baton Rouge ^[1] on January 26, 1996 (see 61 FR 2438). The EPA approved the exemption of NO_X requirements for the marginal ozone nonattainment area of Lake Charles (Calcasieu Parish) on May 29, 1997 (see 62 FR 29072).^[2]

III. What Does Section 182(f) of the Act Require?

Section 182(f) of the Act sets forth the presumption that NO_X is an ozone precursor unless the Administrator makes a finding of nonapplicability or grants a waiver pursuant to criteria contained in that subsection. Specifically, section 182(f) provides that requirements applicable for major stationary sources of volatile organic compounds shall apply to major stationary sources of NO_X, unless otherwise determined by the Administrator, based upon certain determinations related to the benefits or contribution of NO_X control to air quality, ozone attainment, or ozone air quality. In the revised rule, NO_X has been removed based on a demonstration that additional NO_X reductions would not contribute to attainment of the NAAQS for ozone in the current nonattainment areas.

IV. EPA Analysis

The EPA has exempted major sources located in ozone nonattainment areas in Louisiana from applicable NO_X control requirements of section 182(f) of the Act based upon NO_X waivers previously approved by EPA. The EPA is approving revisions to section 504 which make the State regulation consistent with those previously approved waivers. We note that pursuant to section 182(f) of the Act those previously approved waivers are conditional and may be rescinded. Therefore, section 504 may again need to be modified if the previously approved waivers are rescinded. By letter from Governor Foster to EPA dated March 5, 2001, the State has indicated that it is in fact considering a request for recission of the waiver. Despite such, however, EPA must first act on the State's prior request for a NO_X waiver and any regulations that the State adopted to implement such NO_X waiver pursuant to section 110(k) of the Act. For a detailed analysis of this rule, a Technical Support Document is included in the public docket at the addresses listed above.

V. Final Action

The EPA is publishing this rule without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the “Proposed Rules” section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if relevant adverse comments are received. This rule will be effective on July 30, 2001 without further notice unless EPA receives relevant adverse comments by July 2, 2001.

If EPA receives relevant adverse comments, then EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. The EPA will address all public comments in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

VI. Administrative Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This action merely approves State law as meeting Federal requirements and imposes no additional requirements beyond those imposed by State law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a State rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. The EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective July 30, 2001 unless EPA receives adverse written comments by July 2, 2001.

Under section 307(b)(1) of the Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 30, 2001. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2) of the Act.

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Hydrocarbons
• Intergovernmental relations
• Nitrogen oxides
• Ozone
• Reporting and recordkeeping requirements
• Volatile organic compounds

Dated: May 16, 2001.

Jerry Clifford,

Acting Regional Administrator, Region 6.

Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:

PART 52—[AMENDED]

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart T—Louisiana

2. In § 52.970 (c), the table is amended by revising the entry for section 504 to read as follows:

§ 52.970

Identification of plan.

* * * * *

(c) * * *

EPA Approved Louisiana Regulations in the Louisiana SIP

State citation	Title/subject	State approval date	EPA approval date	Comments
*         *         *         *         *         *         *
Chapter 5—Permit Procedures
*         *         *         *         *         *         *
Section 504	Nonattainment New Source Review Procedures	Feb. 20, 1997, LR 23:197	5/31/01 66 FR 29493
*         *         *         *         *         *         *

Footnotes

1.  Consisting of the following parishes in Louisiana: Ascension, East Baton Rouge, Iberville, Livingston, and West Baton Rouge (see 40 CFR 81.319).

2.  Further, we approved the redesignation of Calcasieu to attainment for ozone on April 10, 1997, and which was published on May 2, 1997 (see 62 FR 24036).